Serbia Justice Functional Review

Internal Performance Assessment > Human Resource Management

b. Staffing Levels and Methodology

i. Numbers of Judges and Prosecutors

Serbia lacks a methodology for determining the number of needed judges and prosecutors. Before 2009, numbers were determined by additions to a baseline number established in the early 1990’s without a written methodology. Since 2009, the HJC and SPC’s continued this ad hoc approach, without written criteria for how many judges are needed overall or any transparent or rigorous attempt to examine whether the initial numbers reflected caseloads, organizational or procedural changes or ongoing needs of a modern judiciary.737 Successive amendments to the court network have resulted in further additions, as most judges were unwilling to move locations.738

Once positions are created, there is a tendency to fill vacancies because they exist, not because there is an objective need to fill them. For example, in addition to the return-to-work of hundreds of judges after a failed re-appointment process, a further 160 judges were appointed in March 2013. The additional 160 were requested by the judiciary and approved by the MOF, notwithstanding the falling numbers of incoming cases across all courts and the transfer of criminal investigation and other functions from courts.739 In other instances, vacancies remain on the books for a long time without justification, and these should be removed from the systematization.

In all, Serbia has adopted a liberal approach to judicial appointments to date. Yet appointments of judges should always be considered cautiously, recognizing that judges and prosecutors are permanent and significant investments. Once appointed, they are difficult to remove or transfer and generate high unit costs to the system in terms of salaries, allowances, accompanying staff etc.

Serbia has approximately twice the average of filled judge positions per capita compared with other jurisdictions in Europe.

Serbia has approximately twice the average of filled judge
positions per capita compared with other jurisdictions in Europe.
The number of judges by court type in Serbia is shown in Table 21
above, and comparative figures for 2012 are shown in Figure 144
below.

Among CEPEJ countries, Croatia and the two smaller countries of Luxembourg and Slovenia had more judges per capita in 2012.741 However with Serbia’s additional 160 judicial appointments in March 2013, these rankings may have changed, and Serbia may now have the third highest number of judges in among CEPEJ countries. The CEPEJ notes that states with over 30 judges per 100,000 inhabitants can be found essentially among the states coming from the Former Yugoslavia, including Croatia, Macedonia, Montenegro and Slovenia.742

Now with a stabilized network and a larger-than-necessary pool of judges, no new judicial appointments should be made. The HJC should fulfill its obligation to systematically determine the number of needed judges. Until those methodologies are developed and formalized, there is no reasonable or transparent basis to justify adding more people to the system.

According to the 2012 CEPEJ data, Serbia has 8.4 prosecutors per 100,000 inhabitants.744 This ratio is relatively low for the Central and Eastern Europe region where ratios range from 14.8 to 25.7 prosecutors per 100,000 inhabitants in Poland, Hungary, Slovakia, Montenegro, Bulgaria and Lithuania. But Serbia’s ratio is high compared to Western Europe. In Western Europe however, prosecutors are more likely to be supported by larger numbers of mid-level specialist staff.

As of December 2013, Serbia counted 54 Prosecutors and 651 Deputy Prosecutors organized across six prosecution levels (see Table 22 below). No new prosecutors were appointed in March 2013 when judges were appointed, notwithstanding that the CPC implementation and court re-networking would likely affect them more.

By 2015, the workloads of former Investigative Judges will be negligible compared with their colleague judges.

Despite significant changes in the criminal procedure, the work planning for criminal law judges has not been systematically adjusted. No Investigative Judges agreed to become Prosecutors.746 In most
instances, former Investigative Judges have a much-reduced caseload, dealing only with ongoing investigations and pre-trial criminal matters.747 Their workloads will likely reduce further, and by 2015 their caseloads will be negligible compared with their colleagues.748 A system-wide approach to re-training and re-
allocating former Investigative Judges and judicial assistants has not been designed. Instead, individual Court Presidents are determining these resources on an-ad hoc basis.

Meanwhile, the number of prosecutors remained stable from 2010 to 2013, notwithstanding their growing responsibilities. The SPC conducted a preliminary analysis of resources needed for successful implementation of the new CPC. However, the basis for this analysis was to transfer the already-allocated financial resources from courts to prosecutors, and did not consider the full workload, future organization, and outlook of PPOs. In May 2014, 45 additional Deputy Prosecutors were eventually appointed, but that figure was not determined based on objective need given the lack of data among PPOs about their caseloads and the absence of criteria for evaluation of the work of prosecutors. Since the new CPC has been in effect only since October 2013, there are no sufficient data to evaluate its results.

ii. Numbers of Court Staff

In 2012, Serbia had an average of four non-judicial employees per judge. This is it at the upper end of staff-to-judge ratios seen in the EU and is higher than 19 of the 25 EU Member States that submitted data on this issue to the CEPEJ for 2012 (see Figure 145).

Staffing patterns are not analyzed to match the number of judges or caseloads, and staffing is not adjusted when circumstances such as caseloads or technologies change. While staffing norms exist in theory to set personnel allocations, they are not implemented or enforced in practice. The norms may themselves be too simplistic a way of determining staffing levels given the complexity of justice institutions and the absence of a case weighting methodology, and it may be reasonable for systematizations to vary from these prescribed norms. However, such variations in the systematizations and the subsequent personnel budget should in future be justified and documented by courts based on objective need. Ratios have thus evolved on an ad-hoc basis, as individual Court Presidents have made and were granted requests by the MOJ and MOF for new positions above of the norms.750

While, staffing norms exist in theory to set personnel allocations, they are not implemented or enforced in practice.

The total budgeted judge-to-staff ratios vary widely within courts of the same level.751 For
example, the number of budgeted non-judge positions in the Basic
Courts ranged between 3.4 and 5.6 employees per judge in 2013
(see Table 23). The range of positions per judge was more
dramatic in the Misdemeanor Courts, spanning from 2.9 to 8.5
employees per judge. There are significant ranges of staff ratios in
the Higher and Commercial Courts as well.752

There are significant differences in the number of judicial assistants, administrative staff, and typists budgeted per judge (see Table 24 and Figure 146 above). These positions are most closely related to case processing, and their numbers should correspond to the number of judges which in turn should be objectively determined by caseloads, none of which is occurring.

In total, around 30 percent of court staff (with a higher percentage in the Basic Courts) do not contribute to case processing.

Courts also have a significant number of low-level staff
who do not contribute to case processing. The ratio of these
ancillary staff (such as drivers, cleaners, land registry staff etc.) to
core staff is shown in Table 24 below. In total, around 30 percent of
court staff (with a higher percentage in the Basic Courts) do not
contribute to case processing.

The judiciary has not evaluated its staffing needs in light of the devolution of certain responsibilities to prosecutors under the new CPC. With the introduction of the new CPC, some judicial assistants have been seconded (often informally) to PPOs. However, a more systematic assessment should be conducted to determine the number of judicial assistants. In the meantime, there should be a hiring freeze for new appointments of Assistants.

Similarly, the judiciary has not evaluated its staffing needs in light of the devolution of certain responsibilities to private agents. Since the introduction of enforcement agents in 2011, there remain 859 court-employed bailiffs. Legacies from previous devolutions remain for years. For example, courts still retain the 120 employees who were responsible for maintaining the cadaster, which transitions out of the courts from 2009. The judiciary indicates that this is because civil servants cannot be moved without their consent from the courts to other bodies – and even between individual courts.759 Meanwhile, there is a general reluctance to eliminate positions, therefore creating inertia.

The imminent reforms to establish notary services should dramatically change the profile of court
staff in Serbia. Serbia may have been able to justify large numbers
of non-judge staff relative to European comparator countries while
Serbian courts were conducting verification services. However, the
transfer of these functions to private notaries, scheduled for March
2015, will leave little justification for such large numbers of court
staff. No analysis has been conducted of the staffing implications of
the introduction of private notaries. However rationally, the transfer
of verification services should result in large-scale redundancies
among registry staff, particularly in Basic Courts.

A strategy for eliminating excess positions through layoffs, attrition or other means such as transfers is needed. Public sector positions can be eliminated through layoffs with provision of severance pay. The funds saved through right sizing could then be invested in much-needed areas, such as in technical and advisory positions or improvements in ICT or case management functionality

The number of employees varies significantly by region, with no clear justification. For instance, the Higher and Basics Courts in Belgrade and Novi Sad region demonstrate much higher staffing ratios than Nis or Kragujevac (see Table 25 below).

Further, staffing patterns do not generally reflect economies of scale (see figure 5 and Figure 6). The Basic, Higher and to a lesser extent the Commercial Courts begin to experience economies of scale as they grow from small courts to medium sized courts. However, beyond a given size, the ratio of employees for judges becomes greater as the number of judges grows, particularly in the Higher Courts.761

Further, staffing patterns do not generally reflect economies of scale (see figure 5 and Figure 6). The Basic, Higher and to a lesser extent the Commercial Courts begin to experience economies of scale as they grow from small courts to medium sized courts. However, beyond a given size, the ratio of employees for judges becomes greater as the number of judges grows, particularly in the Higher Courts.761

The RPPO and SPC have not provided any rationale on why these positions remained vacant for such a long period of time. It may be with the increasing breadth and depth of prosecutorial work that some vacancies should be filled. Without an objective basis for these ratios however, it is not possible to assess whether all vacancies should be filled or whether the ratios should be downgraded and money allocated to other resources, such as improvements in ICT to better enable existing staff to perform their work.

Unlike in courts, the ratio of ancillary staff to core prosecutor staff is not high. Table 27 below indicates that out of 1,084 employees, only 815 work directly on case processing. For example, the First Basic Prosecutors Office has the highest number of non-prosecutor employees with 129 staff, of whom 17 are ancillary staff. These low numbers of ancillary staff are mostly due to the fact that PPOs are often co-located in the same building as courts. As a result, they can often rely on the services of ancillary court staff (such as cleaners, maintenance staff, etc.) without paying for their services.

iii. Extent and Impact of Temporary Staffing

The ‘shadow workforce’ is reported to be extensive, numbering thousands, but their precise numbers and roles are unknown.

The judiciary employs over 1,100 temporary employees, representing 10 percent of the total
workforce. In some instances, they are utilized to backfill vacant
positions rather than substantively filling those positions. In other
cases however, the use of temporaries results in a total workforce
significantly exceeding the systematization. There is no effective
position control for individual courts, court types, or court levels.
However, consistent with statute, the MOJ has required that those
temporary staff exceeding 10 percent of the overall workforce be removed by June 30th, 2014.767

In addition to temporary staff, there exists a large ‘shadow workforce’ of contractors, interns and volunteers. The shadow workforce is reported to be extensive, numbering thousands, but the precise numbers are unknown.768 Their roles are also unknown but reportedly range from legal assistants to staff in the registry office. Their contribution is difficult to assess, but given the already-high numbers of court staff objectively and relative to the rest of Europe, their additional value-added is likely to be marginal.

The use of temporaries is more extensive in courts. While the Belgrade First Basic Court budget included only 180 judicial assistants, the real figures show that 220 were employed.769 17 out of 72 temporary judicial assistants are substitutes for colleagues on leave or filling vacancies, and 55 were attributed to ‘increased workload’, notwithstanding that incoming cases fell. The total numbers are more or less aligned with the staffing norm,770 though they have grown incrementally rather than been planned. Since they exceed the personnel complement, these positions were funded through salary transfers made by the MOJ at the courts’ request.771

Temporary employees and contractors are hired at the discretion of the Court President and are subject to irregularity in employment. Stakeholders report that recruitment practices are neither open nor transparent, and in some cases are subject to cronyism and influence-trading. Temporary employees must also be taken off the payroll for a minimum of 30 days at the end of their limited terms,772 though stakeholders report that many temporaries continue to work without pay during this period. Such arrangements create systematic vulnerability toward malfeasance, in particular a high risk of petty corruption.773 Some temporary staff also report that this uncertainty renders them vulnerable to abuse or unreasonable work conditions by their supervisors.774 In all, the extensive use of temporary staff harms morale, creates an unstable work environment and most likely reduces the efficiency and quality of work in the courts.

Collectively, temporary employees and contractors exceeded the 2013 courts’ staffing complement budget by around 7 percent (see Table 28). Much of the additional labor is focused in the Basic Courts. In 2013, the Basic Courts employed 636 temporary and contract staff, more than their budgeted staffing complement, representing an additional 11 percent of its workforce. The Higher Courts also employed an additional 6 percent but the Appeals, Misdemeanor, and Commercial Courts refrained from doing so.

There is also significant variation between individual courts, with some courts hiring significantly more employees than their budgeted staffing complement (see Table 29). For example, three courts (Novi Pazar Higher Court, Paracin Basic Court and Subotica Commercial Court) employed more than 100 percent in excess of their budget complement. This is notwithstanding that the number of incoming cases in each of these courts is falling, sometimes dramatically.776 Belgrade First Basic Court had 230 more permanent and temporary staff than budgeted in 2013. In total, 16 courts were 10 percent above the budget standard. The MOJ recently requested information from courts on their use of temporary and contractual employees with a goal of restricting their use. These efforts should commence with the 16 courts above the 10 percent budget standard.777

The use of temporary employees is most acute in Basic Courts and highest in the Belgrade and medium-sized Basic Courts.779 Over 40 percent of the employees at the Belgrade First Basic Court are employed on a temporary status, and over 25 percent of all employees in the Basic Courts in the Belgrade appellate region are on temporary status (see Table 30).

The extensive use of temporary employees and contractors reflects a system in crisis. Courts are less able to build staff knowledge and expertise, or engage in integrated resource planning. Ultimately, high numbers of temporaries and contractors impact quality and court efficiency.

By contrast in PPOs, the total number of temporary employees is not so high. On December 31st, 2013, the PPOs counted 46 temporary staff, mainly in Basic PPOs. One of the challenges in establishing the exact number of temporaries is the lack of information on the number of volunteers in the PPOs. The Law on Public Prosecution781 established the rank of volunteer without specifying the number of volunteers to be allowed. This complication hinders the analysis of the prosecutors’ efficiency since volunteers do not appear as a resource in the system. Deputy Prosecutors report that they use volunteers to support case processing.

iv. Use of Lay Judges

In addition to large numbers of judges, court staff, temporaries, contractors and the ‘shadow workforce’, there is also a sizeable cohort of lay judges. The number of positions is currently 2,997. However, the actual number of lay judges is not known.782

The Constitution provides that lay judges participate in trials in a manner stipulated by law. However in practice, lay judges in Serbia do not ‘participate’ in trials, and there is consensus among stakeholders that their role is perfunctory. The rationale for lay judges in Serbia is to represent the public in the decision-making process and to ensure transparency in the proceedings. Their duties are generally limited to sitting in the courtroom and listening to the proceedings, and they do not engage in deliberations with professional judges. One stakeholder described them as ‘extras in the play’; another suggested that they be replaced by ‘puppets.’ Some reported that their role is redundant now that court hearings are open to the public. Other stakeholders describe it as a ‘mere remnant’ of former Yugoslav traditions. 783

Compared to elsewhere in Europe, lay judges in Serbia appear not to meet the minimum requirement and definition of a lay judge outlined in the European Charter on Lay Judges, namely to ‘take part in decision-making.’784 Lay judges exist in several civil law countries, and there is considerable diversity in their manner of appointment and their role in judicial work.785

However described, it is clear that lay judges are not operating as intended, and for these reasons, the number and types of proceedings requiring a lay judge has been reduced over time. As a result, professional judges routinely sit as single judges in the absence of lay judges.786 The gradual shrinking of their mandate also raises question as to why 3,000 of them are needed.

Further, the appointment process for lay judges is opaque. Appointments are made by the HJC upon nomination by the MOJ for five-year terms. Any citizen of Serbia between the age of 18 and 70 at the time of appointment, and ‘who is worthy of the function’ may become a lay judge, and selection procedures are discretionary. They almost exclusively comprise unemployed persons and pensioners. Several stakeholders indicated that lay judges are often the less fortunate relatives or family friends of court staff, as a form of charity to supplement their social welfare payments. Others noted that lay judges are sometimes poorly educated or elderly and incapable of following the proceedings.

Lay judges are neither trained nor managed. No induction or ongoing training is provided, nor are there updates on law reforms. Judges, assistants, and court staff advise that lay judges are generally not interested in following the trial. They also complain that if a lay judge is interested in following along, this slows down the proceedings as the judge must then explain the proceedings. There is also no monitoring of their work or timesheets. Some court staff acknowledge that lay judges ‘float’ around the courthouse and charge for time in excess of their allocated trial.

The costs associated with lay judges are not known but are estimated to be sizeable overall. Lay judges are remunerated at a rate of around 3 EUR per hour, plus transport costs. Although a small unit cost, assuming that each position for a lay judge sits for 20 days per year, the annual cost of salaries would be around 1.5 million EUR.787 Significant arrears are also owed to lay judge, and they threatened to strike in 2012. Later that year, the MOJ paid 74,933,787 RSD (650,000 EUR) to cover the arrears owed to lay judges in 2011, and further arrears have been paid via enforcement (default) judgments in courts.

In all, there is a broad consensus that lay judges in Serbia do not contribute to justice service delivery. For these reasons, and even in the absence of a Chapter 23 standard, the most practical way forward would be to abolish the role of lay judges in Serbia and revert to single judge trials. Effort and funds could then be diverted to more constructive mechanisms which improve transparency, access to justice and fair treatment of parties, such as ensuring access to legal information in lay formats. Court monitoring by rights groups or the Ombudsman’s Office could be encouraged, which could then be analyzed and disseminated to raise awareness and drive performance improvements. Alternatively, funds could be invested in improvements in court websites, physical infrastructure, or the use of audio-visual recordings to enhance transparency.788

Abolishment of lay judges may require constitutional amendment. This amendment could be considered in the package of amendments currently being contemplated. If abolishment is not an option, effort should be undertaken to gain some value from this function that can contribute to justice service delivery. That could take the form of requiring lay judges to deliberate in proceedings, and ensuring appropriate selection, training, and management of lay judges to enable them to fulfill a function.